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M13 SPEECH € ro'^ y 

Copy 1 !1 ^^ ., . f i\ 

HON. J. A. MCDOUGALlT^ 

OF CALIFORNIA, 



CONFISCATION OF PROPERTY. 



DELIVEEED 



IN THE SENATE OF THE UNITED [STATES, 
March 12, 1862. 



CITY OF WASHINGTON : 

L. TOWERS & CO., PRINTERS. 

1862. 



> ^ . '^ 



c% 



West. liee. Hist. eoo. 



SPEECH 



. HOI. J. A. M^DOUGALL, 



OF OALIFOHNIA, 



CONFISCATION OF PROPERTY. 



DELIVERED IN THE SENATE OF THE UNITED STATES, MABCH 12, 186*. 



The Senate having under consideration the bill to confiscate the property and 
free the slaves of the rebels, Mr. McDOUGALL said: 

Mr. President : The magnitude of the measure now before the Senate 
demands of us a very full investigation into its merits both as a measure of 
policy and law. In my opinion, there has been no measure brought before 
this Congress, perhaps none before any Congres^- since the Government was 
organized, involving graver and more important subjects of inquiry, more 
fruitful ot consequences to us not only at thepresent time but for long years 
to come. I shall be pardoned then, sir, I trust, if I depart from my usual 
mode of brief observation, and, with some care and labor, undertake to pre- 
sent to the Senate the views and arguments that have governed my con- 
clusions on this subject. 

The present colossal war has been organized against and forced upon the 
Republic by a body of conspirators hostile to our own free institutions and 
to free government throughout the world. The sacrifice of human life, the 
desolations of civil war, and the vast burden of public debt with which 
they are justly chargeable did seem to me to justify almost any degree of 
penal visitation and almost any measure of reprisal or confiscation. I 
suppose it has been the opinion of Senators generally that some such leg- 
islation as is now proposed would be both just and salutary. I can at least 
say such were the opinions I entertained. Some such measure — I will not 
say this measure — seemed to me to be a just and reasonable war policy. A. 
particular measure, however, has been brought before us, and oar action de- 
manded. The time has come when we have to investigate the measure and 
the principles upon which it is founded ; the soundness of the measure as 
one of present policy ; what will be its effects in the future ; and its cha- 
racter, either as instance or precedent, in history. 

I must say, that when I first read this bill, it struck me as one, if to be 
established as law, fraught with very important results. The magnitude 
of those results have grown upon me by coQtemplation. The bill itself 
has two important features; the first of which is a general provision for 
confiscating property, real and personal, of all persons found in arm* 



(P.^f i'i- 



agaifist the Government, or lending aid and comfort to the enemy, with the- 
machinery for carrying that provision into effect. As I propose to be care- 
ful in the statement of my remarks, I will read the sections of this bill 
which I propose to m^ke the subject of discussion and consideration : 

B« it enacted, rf-c, That the properly, real aiul personal, of everj kind whatsoever, both corpo- 
real and incorj)oreal, and including choses in action, and wlieresoever situated, within the limits of 
the United States, belonging to any person or lersons beyond the jurisdiction of the same, or, to 
any: person or persons in any Btate or district, within the United Slates, now ip a state of tnsfcr- 
rectSon and n-bellion apainst tlie authority thereof, so that in either case the ordinary ]>rocefes of lilw 
cannot he served ujxm tlieni, who sliall, cluring the iiresent rebellion be found in arms ajjainst the , 
tjBited Stales, or giving aid and comfort to said rebellion", shall be forfeited and confiscated to the 
United States ; and such forfeiture shall take immediate effect upon the commission of the act of 
forfeiture, and all right, title, and claim of the person committing such act, together with the right 
or power to dispose of or alienate his property of any and every description, shall instantly cease 
and determine, and the same shall at once vest in the United States. 

This act proposes " instantly " to operate a general confiscation. The 
machinery through which the act is to be made effective is provided in 
section four, as fojlows : 

That it shall he the duty of the President of the United States, as often as in his opinion the mili- 
tary necessities of the Army, or the safety, interest, and welfare of the United Stales, in regard to the 
euppreision of the rebellion, shall require, to order the seizure and appropriation, by such officers, 
military or civil, as he may desigHate for the purpose, of any and all properly confiscated aud for- 
feited under and by virtue of this act, situated and being in any district of the United States, beyond 
the reach of civil process in the ordinary course of judicial proceedings by reason of such rebellion, 
and the sale or oiher disposition of said property, or so much of it as he shall deem advisable. 

The fifth section provides : 

That it shall be the duty of the oflBcers so designated to make to the President full reports of theft- 
proceedings under such orders, which report shall be filed In the ofllce of the Secretary of the Treas- 
ury; and all moneys received on the sale of the conflsc*ed property of any person as aforesaid shall 
be deposited in the United States Treasury. 

The second section provides for the disposition of persons held to service 
or labor in the rebellious States ; and among other things it contains this 
proA^ision : 

And whenever any person claiming to be entitled to the service or labor of any other person de- 
clared to be discharged from such laboii or service under the provisions of this act, shall seek to en- 
force such claim, he'shall, in the first instance, and before any order for the surrender of the person 
whose service is claimed, establish not only his title to such service, as now provided by law, but 
also that he is, and has been during the existing rebellion, loyal to the Government of the United 
States. 

The third section is in these words : 

That it shall be the duty of the President of the UnltedStateg to make provision for the transporta- 
tion, colonization, and settlement in some tropical country, beyond the limits of the United States, 
of such persons of the African race made free by the provisions of this act, as may be wiUing to 
emigrate, having first obtained the consent of the Government of said country to their protection 
and settlement within the same, with all the rights and privileges of freemen. 

The magnitude of this measure appears upon its face, and in considering 
it I have sought to withdraw myself from the angry influences that prevail 
in every country during all times of war, and particularly in times of civil 
strife. I have sought my opinions and arrived at ray conclusions upon 
consultation with those great and wise men who have been the acknowl- 
edged masters of opinion throughout the civilized world for many ages. I 
shall undertake to produce their views and opinions, aud shall have but few 
arguments or opinions of my own to advance for the consideration of the 
Senate. 

Before, however, entering particularly into the discussion of these con- 
siderations as they are furnished to us by the great authorities of the past, 
I will call the attention of the Senate to a slight glance at our past Condi- 
tion and make at least one question as to our course in the future. It is 
not two years since that peace prevailed throughout all this land. It is not 
two years since there was a brotherhood among our own people of all parts 
of this Confederacy. The man from Maine was at home in Louisiana; the 
man from Florida was at home on the banks of the Oregon. At that time 



a iai'ge majority of the people of all (he southern States, with perhaps the 
exception of South Carolina, were friends of this Government. After the 
period I have named, eloquent voices were heard throughout all the South 
advocating the Union, the maintenance of the integrity of the entire Union. 
Since then, Kentucky and Tennessee, by their popular voice, declared at 
the ballot-box their attachment to the Union. 

The estimate placed by the leading conspirators upon the popular 
sentiment of other southern States can be well understood from the fact 
that they did not dare to submit the acts of secession, managed and pro- 
duced by a few leaders, to the popular voice. 

For many years a small band of desperate conspirators, by careful and 
secret organization, have been endeavoring to effect the result we now 
witness. How did they proceed? They proceeded with a fixed ji.d 
definite purpo.-e ; they organized secret societies with that common 
purpose ; they affiliated with all parties for that same purpose ; they got 
possession of the Executive chairs of the various southern States; they 
got possession by management of their Legislative Assemblies; they got 
possession of their military organizations ; they got possession of all the 
State and Federal arms throughout the South, and what they had not of 
their own of right they procured through the agency of the conspirators 
within and about this Capitol. The result was, that when the standard of 
rebellion was raised these conspirators had brought about them the 
violent, the desperate, the reckless, and the worthless portion of the 
community throughout the South, (there, as well as elsewhere, too 
numerous,) with arms in their hands; and they overwhelmed, compelled, 
and subdued the large majority of true and loyal men throughout the 
South, who found themselves surprised without arms or organization. 

What I now state is illustrated by what we are at present witnessing. 
The loyal men who receive our troops on the banks of the Cumberland 
and the Tennessee with shouts and with tears of joy are not men who' 
have changed their opinions on this subject. They have been compelled 
for the sake of their lives, of their families — from necessity, if you please 
—to remain silent, and even to go so far as to expre-s sentiments they. do 
not in fact entertain ; but the flag of the Union is as to dear to them now 
as it is to us. It has been evidenced there ; and I undertake to say the 
same exhibition of sentiment will be continued wherever that flag is moved 
throughout the States now in rebellion. 

Then at least we have no right to say that the people of the southern; 
States are in fact disloyal. They are unarmed and subject. What is it 
that is proposed to be done ? Is there any one here in the Senate, a 
lover of his country, of the institutions Established of old, under which ,w^ 
have prospered, who does not earnestly desire the re-establishment of 
those institutions and the return of pea<e bringing with it in its tpain 
happiness and prosperity? If this is to be accomplished, in what spir;;t, 
is it to be accomplished? Is it by subjugation ? Is it by making thes 
people of the South go under the yoke ? They will have to be subject^yj,'! 
not subjugated — subjected, not to you or me ; not the South to the North ^' 
but be made subject to the Constitution an<l the .laws, of tte Union, and. 
when they have been made in truth subject to thii Constitntion and the 
laws, then peace will have returned again. 

Sir, as far as I am able to read of the wisdom taught by the history 
and counselings of the past, the measure now proposed can never secure' 
peace. The policy involved in it will continue an angry, remorseless, 



6 

relentless war, \rhich, if it do not involve subjugation, will involve extir- 
pation. I fear that the country, and not only the country but the Senate 
have been led wild with anger; that the>' have caught some of the angry 
spirit of their adversaries, and instead of taking lessons from the great 
States of the world, and the great teachers of ancient and modern times, 
have taken their advice from Richmond and Mcntgomery. 

Now, Mr. President, I propose to read something of what is and has 
been the rule of clemency in war among St-ates both in the ancient and 
modern times. It is well known that the great council of the Greek 
States, established in the most remote period beyond historical records, 
the Amphictyonic Council, was established for tne puipose of promoting 
the laws of humanity in time of war between the confedeiated States — 
that such was the great office of that council. While war might be carried 
on against the barbarians beyond the coufederacy or with other Govern- 
ments with a relentless arm, a war again^st a rebellious city or of the 
confederacy was limited by fixed laws, laws enforced by oaths imposed 
upon the leaders who conducted the forces into battle. One of those rules 
was that they should not destroy a confederate city; another, that they 
should not cut ofi' the supply of water during a siege; another, that tbey 
should not be guilty of the crime of sacrilege. They were not permitted 
to pursue their adversaries who had sought sanctuary in the temple of the 
Delphian god. They were not permitted to rob those temples of the 
consecrated treasures. Other provisions were made of the same character. 
Their office was to restrain the violence of war among the Greek States. 
Tliey were much more considerate of their own people, though in rebel- 
lion, or though violating the compacts upon which the council was 
established, than they were of strangers. 

On the subject of how the Romans carried on war, and how, while 
adopting a liberal and generous policy, they extended their city and the 
strength and wealth of their State, and how, afterwards, by adopting the 
contrary policy, they made, instead of friends, enemies, we have the bene- 
fit of the opinion of a man most eminent for wisdom. I will read a few 
passages cited by Wheaton from Cicero: 

"In private life we ought, perhaps, to be satisfied with the repentance of an enemy, testified in 
Buch manner av to render impossibte fresh aggression on his part, and to intimidate others from com- 
mitting the like otfence. In.put)lic relations, the laws of war are to be strictly observed ; for there are 
two modes of settling controversies, one by discussion, the other by resort to force. The first i» 
proper to man, the second to brutes, and ought never to be resorted to except where the former is 
unavailable. The sole object of war is to enabl(?u8 to live undisturbed in peace ; and victory spares 
the conquered, unless they have forfeited their title to forbearance by first violating the laws of war 
In practicing cruelty. Thus tlie old Romans accorded the political rights of tlie city to the Tuscu- 
lans, Sabines, and others; but they razed to tlie ground Carthage and Numantia. Tlie destruction 
of Corintli was certainly to be regretted ; but the severe conduct of the Romans towards that city 
was explained by the fact of its local position favoring a renewal of the war. According to Cice- 
ro's opinion, however, an offer of peace which has nothing insidious in its terms ought never to be 
refused. It is not only a duty to spare the vanquislied, but to give quarter to the garrison of a 
besieged town offering to surrender after a breach made in the walls, lie asserts that this rule had 
been so scrupulously observed by his countrymen that those generals who had received the su-bmia-i 
Bion of conquered cities or nations becarao their patrons, according to the ancient law and custom."^ 
• • • » * m ° * « • 

"The oblivion of these principles of justice and mercy by the Romans in their conduct towards 
other nations was, according to Cicero, the main cause «f the decline and fall of the republic, which 
he affirms to have been well merited, and as it were awarded by the justice of the gods. ' So long' 
as the Roman people,' says he, ' maintained its empire by beneflt.s and not by injuries, so long as it 
carried on wars either to extend its empire, or in defence of its allies, those wars wore terminated 
by acts of clemency, or of uecensary severity. The senate was an a.s>lum for kings, people, and 
natioiiii. Our magistrates and generals placed their chief glory in protecting with justice and fidelity 
the provinces and allies. Tlius Rome merited the name of patroness rather than that of mistress of 
the world. These usages and tlus discipline have long been gradually declining, and with the tri- 
umph of Sylla disappeared altogether." ., * 

An instance is cited by Vattel where' apeQibassador came from Priver- 
num, th«n at war with Rome, iuing lor peace; and it is cited by that 



author as an example worthy of admiration. The question put by the 
Roman Senate to the embassador was, " if we grant you clemency, what 
dependence can we have on the peace you come to sue for ?" The embas- 
sador replied, '' if you grant it on reasonable conditions it will be safe and 
permanent, otherwise it will not last long," Some objected to the boldness 
of this reply ; but the body of the Senate approved of his answer, consid- 
ering it the proper language of a free man representing a free people. , 
Grotius has given us a number of cases, with his own opinions upon this/,-^ 
same subject, of clemency in war : "' 

"Though it be not properly my design to Inquire what is now most practiced, but to reduce the 
extravagant license of making war to what natural equity allows, or what is best among things 
lawful ; yet virtue itself, little esteemed in this age, ought to forgive me if,- while she is by herself 
neglected, I set a value upon her on the account of her advantages. First, then, moderation ob- 
served in preservingthose things which do not lengthen out the war, takes from the enemy a power- 
ful y/eapon—detiperation Archidamus thus speaks in Thucydides : ' Look upon the enemy's coun- 
try as an hostage, and so much the better the more it is enriched, and with the more reason to be 
spared, lest despair should render the enemy more formidable.' The same was the advice of Age- 
sllaus, when, against the opinion of the Achiaens. he gave the Acarnanians free liberty to sow their 
corn, saying, the more they sowed, the more desirous they would be of peace. And to this purpose 
to the Satyr : ' 

" ' Spoilatis arma super sunt.' 
" 'The plundered still have desperate arms.' 

" Livy tells us, when the Gauls had taken a city, their chief commanders would not let all the houses 
be burned ; that what they left standing ol the town the enemies might look on it as a particular 
fevor, and thereby it might be a means to make them more easy. 

" Besides, the sparing of an enemy's country during a war looks as if we were pretty confldent 
of a complete ^ictory. And clemency is of itself a proper instrument to soften and pacify the minds 
of men, Hannibal, according to Livy, wasted none of the lands of the Tarentines, but not of mod- 
esty, either in general or soldiers, but to gain the Tarentines to his party. For the same reason did 
Augustus Csesar forbear plundering Pannonia. Dio gives the reason ; he hoped to win them with- 
out blows. And Timotheus, upon the same account, (as Polysenus relates,) and for some other 
considerations, gained upon ihe affections of his enemies. Plutarch, mentioning the moderation 
of Quintius, and the Pvomans that were with him (in Greece,) adds this : ' They quickly reaped the 
benefit of his forbearance, for as soon as he came into Thessaly the cities readily yielded to him. 
The Greeks also which dwelt within the Thermopylse earnestly desired his coming; and the Acseaus 
renouncing the friendship of Philip, immediately confederated with the Romans against him.' Fron- 
trius informs us that a city of the Ligones, having escaped a fearful devastation in the war made by 
Domitian, under the conduct of Cerealis, against Civilis, the Batavian, and hi^ associates, because, 
beyond their expectation, they had lost nothing of their goods, submitting to his obedience, tht^y 
furnished him with seventy thousand men well armed. 

" Contrary counsels have met with contrary success. Livy gives an Instance in Hannibal, by na- 
ture much inclined covetousness and cruelty, to destroy what he could not keep, that he might 
leave nothing to the enemy but wasted lands. And this counsel was wretched both in the cause 
and the effect. For he not only lost the affections of those whom he thus barbarously used, but of 
others also, for the terror of the example reached beyond the immediate sufferers."— GVo«»«» ontk€ 
Eights of War wnd Peace, vol. 3, pp. 220, 222. • :'.;^- : 

An instance of the same kind is given by Vattel. He cites the case of 
Henry IV of France struggling against his own people for his crown. After 
conducting a victorious war against them, such were his acts of clemency 
during that war, that there was no more loyal people to their prince in 
Europe than the people of France to Henry IV. It is cited in contradis- 
tinction to the conduct of the Duke of Alva, representing Spain in the low 
countries, where, although his acts of tyranny for the time subjected the 
States then in revolt against Spanish authority, yet afterwards lost her the 
whole of the Netherlands. 

Francis Vittoria, although more of a prelate than a jurist, is justly re- 
garded as one of the ablest writers and highest authorities upon the sub- 
ject of how far the spirit of Christianity should mitigate the rigors and 
calamities of war. He affirms, as a rule to "be observed among Christian 
nations, that the property of private' citizens in a Government subdued 
should not be taken possession of by the conqueror, and that therein wais 
in Christian countries should differ from the wars among old States before 
the introduction of Christianity and war among barbarians. 

This rule of clemency is laid down as just between foreign States at war, 
without particularly considering the rule as applicable to civil wars. It is 
true that civil wars awake more angry passions, and are, as a general thing, 



pursued more ruthlessly than wars with foreign nations. Is it not merely 
the result of psission, evil passions, if you please, aroused by the more im-'/, 
mediate presence of its cause ? Oh this subject Vattel again gives us the^" 
benefit of his opinion, and he has put it in such a form of language and"' 
such shape of argument that the justice of his opinion cannot be challenged : 

"A civil war breaks the bafids of society and government, or, at least, suspends their force and,- 
effect; it produces in Hie nation two independent parties, wlioi-ohsider eacli other ns enemies, and 
acknowledge no common judge. Those two parties, therefore, must necessarily be considered a» 
thenceforward constituting, at least for a time, iwo separate bodies, two distinct societies. Thongh 
one of the purtieB may have been to blame in breaking the unity o( the State and resisting the livfi - 
ful authority, they are not the less divided in fact. Besides, who shall judge them? Who shall pro- 
EQunie on which side the right or the wrong lies? On earth theyliave no common' snperior. They' 
stand, tliercfnre, in precisely the same predicament as two nations who engage in a contest, and, 
being unable to Come to an agreement, have recourse to arms. '' 

"TlHB being the case, it is very evident that th^common laws of war — those maxims of humanity, 
moderation; and honor which we have already detailed in the course of this wH'irk — ought to biiob^' 
gerveil by Tx)th parlies in every civil war. For the same reasons which render the observance of 
those maxims a matter of obligation between State and State, it becomes ecpially ami even raord 
necessary in the unhappy circumstance of two incensed parties laceratmg their common Country. • 
Should tie sovereign concelve;he has a right to hang up his prisoners as rebels, the opposite party 
will make reprisals; if he does not religiously observe the caj)itulations, and all other conrenttons 
made with his enemies, they will no longer rely on his word ; should he burn abd ravage, thej will' 
follow his example; the war will become cruel, horrible, lead every day more destructive to thfe 
nation. The Duke de Montpensier's infamous and barbarous excesses against the reformed party 
in France are too well known ; the men were dellrered up to the executioner, and the women to the 
brutality of the soldiers. What was the consequence? The Protestants became exasperated ; they 
took vengeance of such inhuman practices, and the'war, before sufficiently cruel as a civH and reli- 
gious war, became nion bloody and destructive. Who could without horror read of the savage 
cruelties committed by the Baron des AdretsV By turlis a Catholic and' fc Protestant, be distin- 
guished himself by hisbarbarity on both sides. At length it bcicame necessary to Helinquish those 
pretensions to judicial authority over men who proved themselves capable of supportitig their cause 
by force of arms, and to treat them not as criminals Init as enemies. Even the tVoopS have often 
refusvd to serve in a war wherein the prince exposed them to cruel reprisals. OfiBcers who had the 
highest sense of honor, though ready to shod their blood on the field of battle for his sen-ice, havci 
not thought it any part of their duty to run the hazard of an ignominious death. Whenever, there- 
fore, a numerous body of men think they have a right to resist the sovereign, and feel themselves in 
a condition to appeal to the sword, the war ought to be carried on by the contending parties in life ' 
same manner as by two different nations, and they ought to leave open the same means for previelMi-' ' '. 
ing its being carried to outrageous extremities, and for the restoration of jieace. : ' . 

" When the sovereign has subdued the opposite party, and reduced them to submit and sue for 
peace, he may except from the amnesty the authors of the disturbance — the heads of the party; he 
may bring tham to a le_gal trial, and punish them if they be found guilty. He may act in this man- 
,ner particularly on occasion of those disturbances in which the interests of the people are not ao 
much the object in view as the private aims of some powerful individuals, and which rather deserve" 
the appellation of revolt than of civil war. Such was the case of the unfortunate Duke of Mont-' 
morency ; he took up arms against the King, in support of the Duke of Orleans, and, being defeated 
and taken prisoner at the battle of Castle Nau<Iari, he lost his life on a scaffold, by the sentence of 
the Parliament of Toulouse. If he was generally pitied by all men of worth and sentiment, it WaS 
becau.se they viewed bim rather as an opponent to the exhorbitant power of an imperious minister 
than as a rebel against his sovereign, and that his heroic virtnes seemed to warrant the purity of 
bis intentions." 

The point to which I particularly desired to call the attention of the 
Senate in this extract is contained iu these words : 

" For the same reasons which render the observance of those maxims a matter of obligation be- 
tween State and State, it becomes equally and even;more necessary in the- unhappy circumstance of 
two incensed parties lacerating their common cotnitry." 

Mr. President, the views thus expressed by these v^iiters, and thus illus- 
trated by past history, appear to have been the views entertained and acted 
upon by this Government thus far. That policy of clemency, as thus 
taught, was indicated in the inaugural address of the President. After- 
wards, at the opening of the extra session of Congress last summer, he used 
this language : 

" Lest there be some uneasiness in the minds of candid men as to what is to be the course of the 
Government towards southern States after the rebellion shall have been suppressed, the Executive 
, deems it proper to say It will be his purpose then, as ever, to be guided by the Constitution and the 
laws; anil that he will probably have no ditforcnt understanding of the powers and duties of the 
Federal Government relatively to the rights of the States and the people under the Constitution than 
that expressed in the inaugural address!" < ^ • 

At the opening of the present Congress, the President, in his messag^'" 
.makev Use of this language : 

.iUiiii Ifiidflttg ;; fii; ^jia Li I ij'g^a ai.,::i oi.i.'//.^ :i-^.. -,li~ -'•' ^-' - '■' '- 



'" "In cbisid^Vii^ nie- policy to be adopted for 8upp;^6ssing Uie insurrection, I '^aVe been anxipns 
t^^d careful that the inevitable conflict for this purpose should not degenerate int» a viotent, remoiee- 
iess, revolutionary BlruggU'. I have therefore thought proper to keep the integrity of the Union 
prominent as the primary ol^jeet of the contest on our part." 

,■ "Expressing the same line of policy, Mr. Seward, in August last, writes 
■'to Mr, Adams at the Court. of Great Britain: 

" Tou will indulge in no expressions of harshness or disrespect, or even imnjitience, concerning 
the seceded States, their agents, or their people ; but you will, on the Contrary, all the whil# remetn- 
ber that those States are now, as they always, heretofore have been, and, notwithstanding! their tem- 
porary self-delusion, thoy must always continue to be, equal aud honored members of this Federal 

- 1 Uuion, and that their citizens, throughout all political misunderstandings and alienations, still are 

, an(} always must be our kindred and" countrymen," 

in '.Ag?iiD, Congress in July lastj in the Crittenden resolution, resolved : 

.i^"That this war is not waged on their part in any spirit of oppression, nor for any purpose of 
' conquest or subjugation, nor purpose of overthrowing or interfering with the rights or established 
• institutions of those States, but to defend and m.iintain the suprem'acy of the Constitution, and to 

preserve the Union with all the dignity, e<iuality, and rights of the several States unimpaired ; and 

that as soon as those objects are accomplished, the war ought to cea=e." 

Sir, I ask whether the policy thus announced by the head of; this Gov- 
ernment, and thus anuoiinced by his chief Secretary to our representative 
abroad, and thus affirmed by both branches of the national Legislature, is 
or is not the policy of the country ; and whether it is the policy indicated 
. l>y the measure now before the Senate?. I ask is not this the policy to 
which this Government stands pledged, and whether or not this measure 
, ;i& tiibt a,,distinct yiplktion of O^tt^^ ' ' , 

" .'Bufcj Mr. President, I have been .reading mostly the opiniotiS of individ- 
,'i-^^s with regard, to what should be the, conduct of natibris in. time of war, 
' and the rule's 'of cleTliency thaf'^'V^-at, wise, and good men hav,^ e'ii(5eayp,red 
to establish through many ages as the real law of war, and which they 
Lave not been able permanently to establish, for the sole reason that he 
who conquers lias th^ conqtiered withiii^iiB power, and will always be rapiie 
or less revengeful; and to him power makes law. In almost all- great 
, ;wars even the established laws of nations are overturned atid disregarded, 
if this has been 'SC/inQthei" States and Mhfer patfens, it will;be,:no justifica- 
tion for us. .' '.,.',.!■„:: '. :, . -! ^ '■ .; '^ 

.. Noyf, sir, I iind^tBke 'tO'L'iy ihat this bill is a Violation of'tSe establi'shed 
;liaw of nations. I take it there has not been in history such a thing as a 
.general law of confiscatibn of egtates, unless the power exerted by some 
rnonareh at the head of conquering armies, dividing conquered territories 
among ihisleaiders, may be taken as a tav> of confiscation. 1 believe thjB 
la»t instance in history is that of William the Conquerof. He parceled 
out the, lands of the conquered among his leaders. But this bill goes 
• far beyond, the extent of the power exerted by William the Conqueror. 
He only seized the lordships, the lands belonging to the great owners of 
the Saxon aristocracy, leaving to the franklin and lower landholders their 
possessions, only they were bound to recognize the dominion of the count 
or suzerain, who had immediate jurisdiction over them, and render certain 
services, mostly military. Even the Norman conqueror attempted no such 
. coiifiscation as is attempted by this act, an act to sweep the whole of a 
populous country of all property, real and personal, and to be enforced, not 
by the forms of law in courts of justice, not by the President himself, 
whom we have clothed with authority, but by the ten thousand agents he 
may choose to appoint to go and inquire over the land who has uttered 
disloyal sentiments, who has been seen with arms in his hands, at this time 
or that time, and who said thus in April and thus again in August. The 
agent, of the, law is to distinguish himself by his being an efficient agent. 
He is informed that A, B, or C is disloyal. How informed ? As to thi? 



10 

tfhe law is silent. Then, at his pleasure, with the strong arm of the Execu- 
tive, and with the aid of the military power of the Government, he seizes 
upon the property of every person he may choose to name as disloyal, sells 
it, and places the proceeds iu the Federal Treasury. Surely this is a most 
strange and extraordinary law. He may take the poor man's cow as well 
as the lordly man's estate. He may take the poor man's oxen from the, 
.field as well as the rich man's fine bred horses in the stable. 

As I understand it, the law of conquest, properly understood, gives to 
the conqueror the possession of that which was in the conqueFed Govern- 
ment, whether of lands that belong to the (government or Crown, or moneys 
in the public or his private treasury. A much argued case came up from 
India to the English coui ts, where one of the Indian princes who had been 
subdued and surrendered set up a claim to a portion of the moneys seized 
as his private moneys ; and the court sitting at Bombay said, because they 
were his private moneys they were not subject to seizure ; but the English 
court held, and held well, that he being the prince, the Government making 
war, and having command of all the resources that belonged to it for the 
purpose of prosecuting the war, he had no private property, and therefore 
overruled the decision of the court in the East Indies. Vattel states the 
general rule with regard to that to which properly the conqueror succeeds: 

" The conqueror who takes a town or province from his enemy, cannot justly acqnire over it any 
other riglits than such as belonged to the sovereign against whom he has taken up arms. War au- 
thorizes him to possess himself of what belongs to his enemy ; if he deprives him of the soverer- 
eignty of that town or province, he acquires it, such as it is, with all its limitations and modifica- 
tions. Accordingly, care is usually taken to stipulate, both in particular capitulations, and in 
treaties of peace, that the towns and countries ceded shall retain all their liberties, privileges, and 
immunities." — Vattel, p. 88T. 

Again : 

"In the conquests of ancient times even individuals lost their lands. Nor is it matter of surprise 
that, in the first ages of Eome, such a custom should have prevailed. The wars of that era were 
carried on between popular republics and communities. The State possessed very little, and the 
quarrel was in realitj' the common cause of all the citizens. But at present war is less dreadful in 
its consequences to the subject; m.atters are conducted with more humanity ; one sovereign makes 
war against another sovereign, and not against the unarmed citizens. The conqueror seizes on the 
possessionsof the State, the public property, while private individuals are permitted to retain theirs. 
They suffer but indirectly by the war, and the conquest only subjects them to a new master. 

" But if the entire State be conquered, if the nation be subdued, in what manner can the vietor 
treat it, without transgressing the bounds of justice ? What are his rights over the conquered coun- 
try? Some have dared to advance this monstrous principle: that the conqueror is absolute master 
of his conquest ; that he may dispose of it as his property ; that he may treat it as he pleases 
according to the common expression of treating a State as a conquered country; and hence they 
derive one of the sources of despotic government. But disregarding such writers — who reduce men 
to the state of transferable goods, or beasts of burden — who deliver them up as tlie property or pat- 
rimony of another man — let us argue on principles countenanced by reason and conformable to 
humanity." — Vattel, p. 388. 

The same writer, iu speaking of the old law, where a city or fortress re- 
LJsted, and afterwards was taken and subjected to pillage, lays down the 
rule that now obtains among civilized States, both in making war against 
fortified cities and where, occupying an open country, contributions have 
succeeded to seizure, so that when a city surrenders to an armed enemy, a 
contribution may be assessed justly upon all the citizens, or may be pro- 
vided by the Government representing all the citizens, and not produce 
the waste and destruction following from a pillage, where much is destroyed, 
and where vast injustice must always be done. 

The doctrine is distinctly laid down by Kent to the same effect. He 
says : 

" The general usage of war is not to touch private property upon land.'' 

And let me here remark that much of the argument of the chairman of 
the Judiciary Committee is based upon confounding the law of war upon 
the land within the territorial jurisdiction of a State and the maritime law 



11 

of cations, a uniform law recognized as the same law in Denmark, in Eng- 
land, in Spain, and in this Republic : 

"The general usage of war is not lo touch private property upon land without making compen- 
sation, unless ill special cases dictated by th<' nf cessary operations of war, or where captured in 
places carried by storm and which have repelled all overtures of capitulation." — 1 Kent, p. 92. 

Now, Mr. President, what has been our practice ? What was said to 
be the law of war when our armies marched into the territories of our 
neighboring republic? How was it administered by the column moving 
through Monterey 'to Buena Vista? How was it administered by General 
Scott in moving to the city of Mexico? Instead of pillaging or seizing 
anything upon the line of march, for such conduct the heaviest penalties 
were inflicted. No question was made whether the inhabitant of the en- 
emy's country the day before or the day after might have been or might 
be in arms. He was paid out of the Government Treasury for whatever 
was taken; and when we had conquered a portion of Mexican territory, 
and it came to us by a treaty of peace, what was more carefully guarded 
than the estates of those men who held under the Spanish and Mexican 
Governments in the ceded territory ? Among the largest landholders at 
that time in California was General Andres Pico, whose charge upon our 
forces on San Pasqual came very near changing the fortunes of war in 
that department. Was his claim of right disregarded for that, or the 
claims of any other person, or of the great body of the people of that 
country who had been in arms against us? In my judgment, the people 
of this country have the right to as favorable a construction of the law, 
and as favorable a practice of the rules of war as any foreign enemy — Mex- 
ican, English, French, or Spanish. 

Then, Mr. President, I contend that although it is said the power exists 
in the conqueror to seize and confiscate, it is not said by any good author- 
ity that the right accompanies the power. There is a vast difterence be- 
tween the power of a conqueror over a subject enemy, what he may do, 
and what he may rightfully do. The rule of right is the rule of law, and 
the rule of right is against seizing the property of private persons, whether 
they be a foreign foe or a portion of our own people in rebellion against 
us. 

But, sir, there is another rule of law with regard to this thing of con- 
fiscation. The bill is to be operative immediately, and to act upon every 
estate, the property of every individual, upon the happening of an act on 
his part. It is a confiscation of the property of all the parties now in 
arms. However, that I may understand the chairman of the Judiciary 
Committee, I will inquire of him, is the first section designed to operate 
upon persons who shall, after this bill becomes a law, be in arms, or is the 
terra "during" to be understood as relating to those who are or may be 
in arms? 

Mr. Trumbull. I am little surprised that the Senator from California, 
a good lawyer, as I know him to be, should ask such a question as that. 
The language of the bill is " who shall." Of course it is prospective. 

Mr. McDouGALL. I presume so; but finding other features in the bill 
quite as obnoxious to the constitutional objection, I thought I would ask 
the Senator that I might understand him perfectly. Now, there is a rule 
with regard to confiscation, and it applies to almost every thing of this 
kind: you have got to acquire a thing before you confiscate it. It is true, 
that if you have seized and taken property as prize of war upon the high 
seas, and have had possession of it twenty-four hours, or have brought it 



12 

into port, or in the case of property seized on land, have brought it within 
the lines of your fortifications, and got perfect dominion over it, had it in 
your possession for a certain time, so that the enemy may not capture it, 
it may, in a certain case, become the right of the captor ; but it is laid 
down most distinctly and clearly that there cannot be any such appropri- 
ation of anything which you have not taken manuel capture of. You 
have got to take it by act of war, by the strong hand, and not by legisla- 
tive enactment. You cannot acquire the right in it by paper formula. 
The right of capture, in all instances, results from the fact that it has 
been taken by the strong arm, and is within the present dominion of the 
captor. 

Mr, Harris. The Senator from California will allow me to suggest a 
case to him. There are men now engaged in this rebellion, and prominently 
engaged in it, who own valuable property in the State of New York. Can- 
not we confiscate that? 

Mr. McDouGALL. That does not reach the point of the argument to 
which I am now addressing myself. That property you may yet get pos- 
session of; but that does not meet the objection to this bill. The bill in 
its general provision is for the confiscation of property everywhere upon 
the happening of an act, independent of whether it is in the possession of 
any conquering party or not. That view of the subject I shall discuss 
hereafter. The doctrine is laid down distinctly in all the books, as to how 
the conquering party may acquire a right, how it is limited as to the time 
of possession, and how as to the perfect dominion of the captor over the 
thing ; but nothing is said with regard to lands, because it has never been 
admitted on the part of any writer on public law that the lands of private 
individuals could be made the property of the conqueror. It "has been 
done by violence in some old periods of history, by semi-barbarous chiefs 
and Roman Emperors, seeking either to fill their own treasury, or appor- 
tion it out among their military chiefs. 

I will now proceed to the diiicussion of this measure in its relation to 
the Federal Constitution ; and if I have not greatly misunderstood the 
provisions of that instrument, legislation, such as is proposed, is expressly 
prohibited. I understand this act to be a general bill of attainder — not' 
such a one as finds precedent in English history, where bills of attainder 
were limited to a few named persons; but striking at whole communi- 
ties, embracing millions of people. It is said by writers that in cases of 
rebellion or other war, individual examples may be made of the leaders of 
the insurgents or the enemy ; but that it would be the worst of tyranny to 
include in the example whole classes or communities of men. This is in 
every one of its aspects an act of attainder, without a parallel, and not 
striking at the leading conspirators— the true objects of a just vengeance 
—but striking at millions of men, operating on them by one fell stroke, to 
deprive them of whatever they may have in this world either for them- 
selves, their wives, their parents, or their children. 

The Constitution provides that no bill of attainder or eie pos.t facto V&yf' 
shall be passed; and I call the attention of the Senate — I suppose it ii 
well understood, however — to the distinction between the two provisions 
of the Constitution. One provides that no bill of attainder shall be passed; 
the other that no attainder of treason shall work corruption of blood or 
forfeiture except during the life of the person attainted. The first provisibn 
relates to legislation, and inhibits the passage by legislative bodies of acts 
of attainder. .The other simply limits the exercise of judicial power. By 



13 

the Eogliah law, the blood of the convicts was attainted ; it was incapable 
of inheriting ; and there was a confiscation of all his estate. We under- 
took to be more humane than the Ehglish Government. We were estab- 
lishing our institutions in the light of ages after English law was first estab- 
lished. Now, the question I put to the Senate is, is this or is it not a bill 
of attainder ? Woodson's Lectures on Eoglish Law has been quoted as 
high authority by the eminent.jurists of our own country and of England, 
aud is, in many respects, an abler work than the great work of Blackstone. 
He defines a bill of attainder thus : 

"All the modes of criminal prosecution hitherto spoken of, whether by impeachment or other- 
wise, are vindications of the laws in being, on which they are wholly founded. But besides the 
regular enforcement of established laws, the annals of most countries record signal exertions of 
penal justice, adapted to the exigencies unprovided for in the criminal code. Such acts of the 
supreme power are with us called bills of attainder, which are capital sentences, and bills of 
pains and penalties, which inflict a milder degree of punishment. In these instances the legisla- 
ture assumes judicial magistracy, weighing the enormity of the charge and the proof adduced ia 
support of it, and then deciding the political necessity and moral fltness of the penal judgment." . 

Observe, he lays down a bill of attainder, as understood in the English 
law, as including capital sentences and bills of pains and penalties. While 
I have this Writer in my hand, I will read something more from him on 
this same subject ; for he not only states what bills of attainder are, but he 
goes into some discussion as to the justice of them, and suggests some rea- 
soHs for the prohibition contained in our Constitution : 

" It must be admitted that in all penal statutes passed ex post facto, except where the innovation 
molifies the rigor of the criminal code, justice wears her sternest aspect. Moral conscience and 
human frailty have no longer the additional guidance of the law. Bills of attainder for treason, 
notwithstanding their plausible pretenses, have offended the general humanity of this nation, and 
have been remarked to roll, like Sisyphus's stone, on the promoters." 

" All civil magistracies have in season their appointed province. The legislative ought not to 
entrench on the judicial. Legislation, as it is the noblest exertion of human sovereignty, is the 
hardest task of human wisdom ; and should not be perplexed by such temporary considerations 
or conjunctures as might hazard impartiality of decision. Hence the political congruity of first en- 
acting laws, and then enforcing them on subsequent occasions, rtrefZ by different magistrates, has 
been confirmed by the very constant usage of the world ; in the observance of which the subjects 
of every State have been thought deeply Interssted. Thus, when a general law is made restraining 
crime, the due application of it is a new field to exercise the faculties of our minds.* To do the 
whole at once, is relying too much on our judgments, especially when the various passions are 
heated or alarmed by an interesting crisis. Such is not the time practically to overturn legal in- 
stitutions, which havateither been sanctioned by long tradition and experience, or were dictated 
by temperate reflection ; and having universality for their object, were uninfluenced by present 
fears, and personal enmity or favor. * * * » ♦ * * 

" Lastly, it is said, that when it is the act of the supreme power, whoever deserves to die, dies 
justly. This in terms excludes inferior judicatures. Tlieir proper province is here allowed to be 
to declare their stable law, not to estimate moral guilt or weigh political danger. Have legisla- 
tures a conscientious right (for I question not their undefined constitutional power) to proceed by 
any other rule ? There is a moral and a civil justice. Offenders may deserve the ultimuni suppli- 
cium on a moral and philosophical view of their guilt ; but how their demerit should authorize 
the political infliction of it, otherwise than accurdiug to pre-established institutions, it is difficult 
to determine and evince. Ofi'enses against the law of nature are obnoxious to divine punishment, 
because the will of the Creator, which constitutes that law, hath been sufficiently promulgated. — 
That the earthly rulers of society, who art ordained such for this very end of prescril)ing the 
line of civil conduct, should be extreme to mark what was done amiss beyond that which is writ- 
ten, should punish the transgression of laws which they have neglected to give, seems too great a 
power for man to exercise over man." 

I understand the quality of a bill of attainder, as thus laid down by him, 
to be the act of a legislature which executes itself, and more, which is ex- 
ecuted witjiout any appeal to the established and recognized judicial tribu- 
nals of the country, either inflicting a capital sentence or imposing upon 
the individual pains or penalties. That this view of the law of what was 
a bill of attainder is correctly stated, I refer to the opinion of Chief Jus- 
tice Marshall in the case of Fletcher hs. Pecks, 6 Cranch, page 138 : 

* 

"No State shall pass any bill of attainder, esBpost/aotolnw, or law impairing the obligation of 
contracts. 

"A bill of attainder may affect the life of an individual, or may conflseate his property, or 
majdo both. 



14 

" In this form the power of the legislature orer the lives and fortunes of individuals is exprestly 
rettrainetl. What motive, then, for implying in words which import a general prohibition to im- 
pair the obligation of contracts, an exception in favor of the right to impair the obligation of 
thoM contracts into which the State may enter." 

The same interpretation of the meaning of a bill of attainder is recog- 
nized by Mr. Justice Story, in his Commentaries on the Constitution, and 
I will read somewhat from him, for he may be called a recognized authori- 
ty, and probably is regarded as good authority by all Senators on this floor : 

" Bills of attainder, as they are technicalty called, are such special acts of the legislature as inflict 
capital puni.shniont upon persons supposed to be guilty of high offences, such as treason and felony, 
•without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder 
degree of punislinient than death, it is caJled a bill of pains and penalties But in the s nse of the 
Constitution, it seems that bills of attainder include bills of pains and penalties; for the Soipremd 
Court have said 'a bill of attainder may affect the life of an individual, or may confiscate his prop- 
erty, or both.' In such cases the legislature assumes judicial magistracy, jMonouncingupon the guilt of 
the party, withoutany of the common/or^ms ami guards of trial, and satUfying itself with proofs, 
•when imi-h proofs nre wiihin its reaeh,7chether they are coiiformohle to the rules of evidence or 
not. In short, in all such cases the legislature exercises the highest power of sovereignty, and what 
may be properly deemed an irresponsible despotic discretion, being governed solely by what it 
deems political necessity or expediency, and too often under the influence of unreason .ble fears or 
unfounded suspicions. Such acts have often been resorted to in foreign Governments as a common 
engine of state ; and even in England they have been pushed to the most extravagant extent in bad 
times, reaching as well to the absent and the dead as to the livirg. Sir Edward Coke has mo- 
tioned it to be among the transcendent powers of Parliament, that an act may be passed to attaint 
a man after he is dead. And the reigning monarch who was slain at Bo-iworth is said to have been 
attainted by an act of Parliament a few months after his death, notwithstanding the absurdity of 
deeming him at once in possession of the throne and a traitor. The punishment has often been in- 
iicted withont calling upon the party accused to answer, or without even the formality of proof; 
and sometimes because the law, in its ordinary course of proceedings, would acquit the offender." — 
Story's Commentaries on the Constitution^ sec. 1344. 

Here let me say that in attainders by the English law they have been 
infinitely more liberal than is provided by the terras of this bill. There, 
after the legislative investigation, judgment, sentence pronounced, if you 
please, the party had his day in court, and might assign objections to the 
attainder. Here you pass a law operating, and to operate instantly on its 
passage, upon millions of people, and the agents of the Government in- 
stantly proceed upon their mission, marching with our Army, not to bring 
captured property before the courts, but to seize and sell it, wherever found, 
at their discretion. And the party suffering this legislative condemnation, 
this magisterial act, has no redress, no remedy — not one provided for in 
the courts of the country. If the law be good for anything, the act of the 
Government clothing its agent with this power is final on the rights of the 
property seized, divests the property because the inquest is supposed to be 
bad. The individual seizing pronounces judgment, if you please ; he sells 
in open market or at private sale ; his seizure divests the estate ; his grant 
invests the estate. Either your law is valueless, it has no substance at all, 
or this is its effect ; or otherwise, if any plea can be set up against this act, 
you have provided for involving the estates of at least one third of the con- 
federacy in a series of litigation affecting all property, the rights of all citi- 
zens, and leaving them in a condition worse than if they were in a state of 
actual war; for general war in the courts of justice is more to be deprecated 
than war upon the battle field. I continue the extract I was reading from 
Story's Commentaries : 

"The Injustice and iniquity of such acts 11 general, constitute an irresistible argument against 
the existence of the power In a free Government it would be intolerable ; and in the hands of a 
reigning faction, it might be and probably would be abused to the ruin and death of the niosi vir 
tuous citizens. Bills of this sort have been most usually passed in England in times of rebellion, 
or of gross subserviency to the Crown, or of violent political excitements; periods in which all na- 
tions are most liable (as well the free as the enslavea) to fofget their duties, and to trample upon 
the rights and lilieities of others.'' — Ibid, 

• 

Mr. President, may we not well ask ourselves if we are not, to some ex- 
tent, in the condition here depicted by the commentator? I say that this 
bill has all the characteristics of an act of attainder as stated by the Su- 



15 

preme Court, as discussed by Woodeson, as laid down by Story, without 
the intervention of the courts of justice, which by the established rules of 
law in civilized countries have the administration of estates, the determi- 
nation of the rights of property. We provide for the transfer of estates 
by legislative act. It is true there is a condition precedent to the title 
passing, but we say it shall pass upon the happening of this act, and the 
party loses his right when it does transpire. Suppose we pass this act to- 
day, what is the consequence? The gentleman says it is not intended to 
be retroactive. Then to-day throughout all the South every man in arms, 
from the highest to the lowest, by this act loses his estate. To-day every 
man throughout the South who has, whether for the purpose of self-pro- 
tection, or in the course of casual conversation, or as a matter of necessary 
policy, done anything, or said anything, or written anything which may 
be construed into lending aid and comfort to the enemy, is divested of all 
his property, real and personal. All that is to be done is to send the 
agents,, civil or military, of the United States to seize it. Have Senators 
considered what the appointment of a body of agents of this kind will 
bring upon the country ; that we are to carry on a war of detectives, in- 
formers, and witnesses against the South, instead of a war of arms ; that 
we are to briug down upon them an army of harpies, with their vulture 
appetite and their vulture claws to rend the possessions of the South, that 
they may themselves carry off some of the fragments to their own homes 
near to the gates of hell ? 

There is nothing that I can conceive of that would be so disastrous to 
this country as to organize an army of informers, detectives, and subsidized 
witnesses to scour the South, and the North, if you please, too. In the 
State of Connecticut, for example, somebody has manufactured a gun that 
has been sold and found its way somehow to Charleston, South Carolina. 
There are anxious spies about, plenty of men who would prefer a case of 
this kind to obtaining a patent right. I speak not of Connecticut particu- 
larly ; I speak of the North generally. While this kind of espionage and 
this kind of investigation and this banding together of agents, detectives, 
and witnesses would take place, what would be the result ? Parties are so 
hostile that you cannot go to a neighborhood where you will not find a 
man of one party who will tell you that his neighbor of the other party is 
a secessionist. Go to that neighbor, and he will tell you that the other is 
worse than a secessionist, an abolitionist. How glad would they be to be 
informed that a law was passed whereby neighbor could be set on watch 
against neighbor, by cunning and strategem to ascertain if he had not done 
or said something by which his handsome estate, his pleasant cottage, his 
comfortable home might be seized from him, and he and his family driven 
out. While this would be true throughout many parts of the North, how 
would it be in the South, where it is assumed, popularly, that every man 
is a traitor, and where a man dare not whisper loyalty : where, if he says 
anything, he must say something that sounds like treason. There is a vast 
field for enterprise ; there fortunes can be made in a day, for by this law, 
all pow^r is given to these agents ; they seize, sell, and report, and it is 
not even provided that the report shall be under oath. 

They seize and sell ; and sell to whom ! The sales will be Government 
sales. When a war ends — like that in Utah for instance — the auctioneer, 
the vendor, and the purchaser are generally persons in the same interest, 
and what is worth $1,000 is sold for ten dollars. And who are to be these 
agents clothed with this mighty power ? Are they to be agents over 



■^6 

whom we have any control — nominated by the President to the Senate? 
No ; the President's appointees, and each particular appointee, of course, 
will exercise the authority of seizure and sale, with his detectives and his 
harpies about him. I can understand how a nation can bear a great war, 
where war is carried on by armed men on the battle-field — how it can 
stand the sacrifice of blood and treasure. There is sufiering at the time ; 
but years pass by, and the prosperity of the nation returns. There may 
be compensation in the dignity and elevation that even war can infuse 
into a people. But a war of detectives, informers, agents, and suborned 
witnesses for the purpose of seizing estates, will breed a disease from which 
this nation can never recover-^a leprous disease, which will hang around 
us in all the ages to come ; lepers we shall be, and a leprous people. 

Mf. President, the chairman of the Committee on the Judiciary, in vin 
dicating the constitutionality of his bill — for he thought it certainly so" 
questionable that it required vindication — chose to refer to a number of 
authorities ; and that we may get at the issue as to the question 6f law, I 
propose to give to them a cursory examination. The first case he cited 
• was that of Cooper vs. Telfair, (4 Dallas, 14.) The question there arose, 
under an act of the legislature of tbe State of Georgia, passed May 4, 1*782 — 
an act passed five years before the adoption of the Constitution, and during 
the Revolution. The question that arose before the court was simply whether 
banishment and confiscation were inhibited by any provision in the consti- 
tution of Georgia. The question of its relation to the Constitution of the 
United States was not mooted, for there was no Constitution of the United 
States. Mr. Justice Washington, in delivering the opinion of the court, 
sdd: 

" Where an offence is not committed within some county of the State, the constitution makes no 
provision for a trial, neither as to the place nor as to the manner. Is such an offence (perhaps the 
most dangerous treason) to be considered as beyond the reach of the Government, even to forfeit 
the property of the offender within its territorial boundary." * * * » * 

"The constitution of Georgia does not expressly interdict the passing of an act of attainder 
and confiscation by the authority of the legislature." , 

There had been no inhibition in the State constitution ; and under the 
Articles of Confederation the powers of the States were altogether difi'erent 
from what they became after we established the present Constitution. 
That is the first case that the gentleman relies upon from which he gets 
the right to confiscate. He next cites the case of Smith vs. The State of 
Maryland, (6 Cranch, 286,) which is obnoxious to the same objection. 
The confiscation in that oase was under an act of the Legislature of Mary- 
land, passed in 1*707 — a law of the province of Marylaud ; and tbe only 
question involved was, whether our treaty of peace with Great Britain ap- 
plied to the case or not. The syllabus is : 

"A writ of error lies to the highest court of a State in a case where the^question is, whether a 
confiscation under the law of the Slate was complete belore the treaty of peace with Great Britain. 

"By the confiscating acts of Maryland, the equitable iTiterests of British siibjects were confisca- 
ted, without office found, or entry, or other act done, and although such equitable interests w»re 
not discovered until long after the peace." 

That case arose under a law passed and operative in Maryland long be- 
fore the establishment of the Constitution ; and the question was simply 
whether the confiscation had been complete, perfected, so as to vest the 
title in the persons who had acquired it under the confiscation before the 
treaty with Great Britain ; for if it was not complete before the treaty, the 
treaty would have come in and saved the estate of the person whose pro- 
perty was seized. It had nothing at all to do with this question— was al- 
together foreign to it. 

The case of Brown vs. The United States, (8 Cranch, 110,) cited by the 



?1T 

Senator from Illinois, in his opening argument, is a case where the right 
of seizure was denied by the Supreme Court. There the property was 
the cargo of a vessel in one of our ports; and it was seized aifter hostilities 
had commenced between the United States and Gteat Britain, The cargo 
had been landed and tied up on shore— had been discharged from the 
ship ; and the court say that, being on land, it was not the subject of 
seizure. That is the point of the cage. 

Mr. CoLLAMER. The Senator will allow me to suggest that the point in 
that case was, that the property of a belligerent in the country, at the dec- 
laration of war, was not forfeited by the declaration of war, but that it re- 
quired a special act to do it. ,, 

Mr. McDouGALL. True, the court decided that .the declaration of war 
did not operate to give the right of confiscation ; but the court made a 
special distinction, and the judgment can be rested on that very distinction, 
between the maritime law of nations and the internal law of nations. 
That distinction was one of the considerations governing the case ; and 
the right "to seize and confiscate was clearly denied. 1 have chosen to refer 
to the decision particularly, because the cohrt make the distinction, which 
, should be borne in mind in this discussion, between the_ maritime law of 
nations administered on the high seas common to all civilized States, and 
the law of nations within the limits of a Government and its territorial 
jurisdiction in connection with the constitution and laws of that particular 
country. The maritime law of nations as administered in the prize cox^rts 
of the United States is the same law that is administered in England. The 
English judges in admiralty rely on our authorities quite as much as they 
do on their own, and I believe more on the authority of the courts of the 
tJnited States than those of any other country, and we, on the other hand, 
rely more on their authority. Mr. Phillimore, the Queen's proctor in ad- 
'mirality and judge of the cinque ports, and one of the most eminent men 
' in this deptrtment of jurisprudence, says that the law administered in the 
courts of admirality in Great Britain is the same as the law in the courts 
of admiralty in the United States, Denmark, Sweden, Spain, and all the 
civilized nations of the world ; and it is not the law of nations as to war, 
■for in treating of the laws of war Grotius, Puffendorf, and all the con- 
tinental jurists treat of war between contending armies, whereas the mari- 
time law of nations has grown out of certain ordinances in old times when 
an efi'ort was first made to'give to those who sailed on the high seas some 
'other charactar than that of pii-ates— ordinances established sometimes be- 
tween commercial nations, and then a series of practices, and a body of 
treaties ; and really the treaties that have existed between commercial na- 
tions are a great part of the law of nations itself, and our conformity to 
the general maritime law of nations may be , considered as of the dignity 
of a treaty, for it enters into and becomes a part of our own Ifiw. That 
vessels of enemies may be seized anywhere upon the high seas is a ruleof 
'maritime war. If we treat with regard to the property of neutrals with* 
the great Powers of Europe, the effect of that treaty will be to establish a 
new rule of maritime law. 

The Senator cited the case of the Venus, Rae, master, (8 Cranch, 253.) 
The Venus was captured by the Dolphin, brought into a port of Massachu- 
setts, and claim made for part of the cargo ; and the only matter determined 
by the court was a question of fraud in the register. It is true that many 
questions as to the right of seizure were discussed in the case ; but in 
speaking of them, the court speak only of those seizures recognized by the 



18 

maritime laws of nations. The same is true of the case of the Amy War- 
• wick recently decided in Massachusetts by Judge Sprague ; a mere ques- 
tion of maritime seizure, and the point involved was the hostile character 
of the party claimant, whether he was really a friend of the Government, 
or whether, haviug his domicil abroad, he had not acquired the new cha- 
racter of an enemy ; and whether, under these circumstances, he could 
maintain his right, which otherwise might have been conceded, admitting 
the seizure of the vessel to have been within the maritime law of war. 

The last case cited by the Senator from Illinois is worth particular at-, 
tention. It is the case of Johnson vs. Mcintosh, a recent case, decided in 
5 Curtis. From it he quotes these very pointed, and it might seem, very 
comprehensive words: "Conquest gives a title which the courts of the 
conqueror cannot deny." It is worth while to enquire under what circum- 
stances this language was used by the judge delivering the opinion. A 
party claimed title to a piece of property in the Northwest — Indian terri- 
tory ; he claimed his title under a grant made by the chief and men of 
authority of the tribe having possession of these lands as against the Gov- 
ernment of the United States, and the question is argued by the court in 
this wise : when, after the conquest of America, Spain and England and 
Holland and other States of Europe sought to acquire possession of the 
territories in this country, they thought that their bringing civilization and 
the Christian religion to the savages justified them in taking possession of 
their property ; and therefore upon this ground England claimed the right 
by possession, and that the planting of the English flag gave the jus dom- 
inum wherever possession was taken, and so of the other States. I say 
they based the right upon the fact that in exchange for this violent 
seizure of the property of a people not at war with them, they brought 
civilization and the Christian religion ; and what did those men of that 
day, more barbarous than ours, lay down the rule to be? That the fee, 
the ultimate estate, was in the Crown of England, but the usufruct was in 
the Indian tribes. That the Indian had the right to possess, and to forever 
possess, the lands and the fi-uits of the lands ; and therefore, from the ear- 
liest day, the colonies from Holland and from England always negotiated 
with the Indian tribes, and purchased out what they called their possessory 
right, which was the full and entire benefit in the lands occupied and pos- 
sessed by them. They said, " the Indians cannot convey ; they may enjoy ; 
.but because they are barbarous and we are a sort of guardians of theirs, 
they may enjoy the lands, but they cannot convey the lands to anybody 
except the guardian Government ; that even the Government has not the 
right to take these lands except by purchase." Will not this Indian law 
of seizure be a sufficient law to meet the views of the chairman of the Ju- 
diciary Committee ? Suppose now we say we have got the dominion over 
all the property of the conquered country, can we not afford to say we take 
it because we bring back the Constitution and the laws, as well as if we 
brought Christianity and civilization ? We will take the dominion, and 
we will treat you as well as your ancestry and ours treated the savages of 
the continent ; we will leave you at least the possession and the usufruct 
in that which you have heretofore enjoyed and are now enjoying. I pro- 
test, in the name of modern civilization, against making for the people of 
the South a worse law, a severer and more penal law, than the one our 
ancestry administered against the savages of this coast, than the one which 
our people administered in the war agaipst Mexico — a people among whom 



19- ir'^i^*} 

r r #f ^ ^ 

were none of our race or kindred, none bound to us by any d^BamoBhifradi- a^ 
tions or former ties of friendship or affection. Yv "^ '-.■^^^^ »i 

Mr. President, no such policy will secure peace. You may mabp. whal are^^-^^y^^' 
called in the citations I have made a body of " desperate " m«n ; yap m^(J&^ ' -^ , 
prive thousaude and hundreds of thousands of their estates ; of thei^all ; you ■'•* 
may say, " we will place you beneath the yoke, you shall be subjugated to y,^ 
us." Were they a people who bad lived under the most abject slavery^ ^^^ 
the question would be whether they would submit to this from new mas- 
ters ; but there can be no such submission from a people who have once 
been free, who have learned what freedom is from their mother's lips in 
infancy, and have enjoyed what freedom bestows through youth and into 
manhood. The degradation of imposing terms disgraceful and humiliating 
•will not be stood by any portion of this people. It would not be stood by the 
people of the State of Maine, if single-handed they had to maintain their 
pine forests against the Union in arms. It would be stood by no com- 
munity in this Republic. Then indeed there would be sacrifices ; every 
true-hearted man would be willing, rather than submit to this, to make 
himself a sacrifice. No true man but would rather die with honor than 
live not only with himself but with his people disgraced. 

I trust w^ all look for the return of peace. I trust we all look for a 
re-united Confederacy. But let us not expect to secure peace or union by 
passing laws which will only make men desperate, make fiercely hostile all 
now friendly to us in the country to which we propose to go, and where we 
propose to raise our flag. It will not only make them enemies, but make 
all oar enemies desperate. We did not take Fort Donelson so much by the 
specific power of our arms ; but the men in arms there had no heart in this 
controversy; they had been forced in the tide of revolution into their par- 
ticular position. They doubted the justice of their cause; many knew the 
cause to be unjust. How will it be when you issue your mandate of general 
confiscation ? 

Mr. President, to throw what I have said about the South in a more 
pointed shape, I will read a letter taken at Fort Henry, which I have found 
in the papers of the day, as expressive of the condition of a great many 
people throughout the South, and many who are in arms : 

Nashville, Tbnnessbb, January T, 1S62. 

Dbab Son : I received your always welcome letter yesterday, and I am going to answer it spee- 
dily. I received-your package containing $300 in confederate State scrip, for which I am very 
grateful. I am glad that you are doing well and that you are well, but I tremble when 1 think of 
you being engaged in this horrid war. Henry, my son, I can but foel the South is in the wrong. 
We may console ourselves with whatever belief we choose, the United States is bound to subdue 
us. General McClellan has and is exercising great generalship. I fear that soon a movement 
will be made that will crush us out. Henry, I know you must think as I do. I wish you would 
resign, and we will move North. No one here suspects my Union proclivities. I am obliged for 
the sake of youJ*^other and sisters, to talk and be a secessionist ; but I say to you, what I said 
when you were at home, I do not believe the northern men desire the ruin of the South. A great 
interest is felt here as regards your position, (Fort Henry;) if that is taken, the South is surely con- 
quered. You can see this as well as others. 

Destroy this letter, as it may get you into trouble. Your affectionate father. 

I take this to be a representative letter, exhibiting the true condition of 
vast numbers of people throughout the South. They talk this way, and 
■why? As this writer says, " for the sake of your mother and sisters," and 
these are strong motives. I before remarked that these men are not to be. 
condemned for their position. The organization of the rebels was so per-j 
feet throughout the South, by a long-continued system of organization, 
that all the arms and all the organizations of the country, both official and 
physical, were in the hands of the conspirators, so tha^ a kw men controll- ^ 
ed the multitude. I have seen, and I presume other Senators have seen, 



20 

a body of fifty men, armed and desperate men, for a time take possession 
of a whole populous county and hold it under absolute control ; and so 
always a few violent men may get the possession of large majorities, and 
hold them until the majority have some means whereby they can secure 
organization, and resist force with force. 

Enough of this, Mr. President; I propose now to say something in re- 
gard to another feature of this bill, and that is the clause in regard to ne- 
groes. I will now repeat here what I have had occasion to say in many 
parts of the country, and what has been my earnest conviction for many 
years. If from the Federal Congress could have been excluded the agita- 
tion of the negro question — one which has little, if any, legitimate busi- 
ness here — if it had never been permitted to enter, or if, when offering it- 
self, it had been excluded, except where there was legitimate constitutional 
field for legislation, there would have been no disturbance in the country, 
and we should have been a brotherhood as a nation to-day. When intro- 
duced, it has become the absorbing topic. Men have sought by their efforts 
here to excite popular sentiment on one side in the North, and popular 
sentiment on the other side in the South. The orations, declamations, and 
harangues that have been heard in this Hall and in the other end of the 
Capitol have not been designed for counsel among Senators and Represen- 
tatives, or for legislation for the Government, but for the purpose of more 
fiercely arraying party against party. For whose advantage ? For the 
promotion of what end ? The building of themselves up at the sacrifice 
of the harmony of the Republic. It has pained me whenever, since my 
arrival here, I have heard these subjects discussed. I had thought, and I 
still think, that the business of this great war, the financial policy it in- 
volves, the strengthening of the hands of Government so that war may be 
made promptly efficient in result ; that these topics furnish field enough 
for all our wisdom, for all our counsel, aod for all our conduct. But how 
has it been ? It is not my office to reprove any Senator. I may, perhaps, 
be too young in the Senate even to speak of these things ; but what time 
has been permitted to any Senator to inquire into the novel question of 
how we shall sustain the finances of the Government; how we can secure 
the means necessary for the prosecution of this great war? 

It has been my fortune to be on the Finance Committee, and to come in 
contact, more particularly than some other Senators, with the questions 
there presented. I have not found my associates professing .to be wise, 
not even the oldest Senators, on the subject. I have not found the men 
at the head of the finance department of the Government professing to be 
wisB on the subject. These are new question?, presented for the first time 
in our history. They demand careful study, careful investigation, because 
upon §uch measures being yvell and wisely matured, depends our success 
in this struggle more than on any question of armies, for we have yet nn- 
armed a million of men ready for the field. 

Is it not true that subjects like the one under consideration, alien to the 
war, have prevented anything like careful investigation or consideration of 
the paramount interests of the Government and the necessary business of 
legislation. Who, I ask, what one Senator has been able to investigate 
any policy of a foreign State that we may assimilate to the policy we 
have got to inaugurate ? I think my friend from Ohio (Mr. Sherman) prob- 
ably has paid more attention to that subject, with the exception of the 
chairman of the Committee on Finance, (Mr. Fessenden,) than any one . 
else here; and yet I think he will say that he is only on the threshold qf' 



21 

the inquiry. We are compelled here promptly to devise a great policy to 
operate throughout the whole country and to reach every man's property. 
We cannot take the example of England and copy laws from her statute- 
boot, and way? England is a very ditferent country from ours, and a 
source of revenue of particular denomination there might bring in many 
millions of money, while here it would not pay the expense of its adminis- 
tration. We have not large incomes as they have in England. Our busi- 
ness is conducted difl'erentiy ; our property is held differently; our ma- 
chinery of Government is altogether different. Some of the provisions 
made in regard to the finances at the extra session have remained a dead 
letter on the statute book, because the Secretary of the Treasury has found 
it impracticable to make them operate; and why not operative ? Because 
unwisely devised or imperfectly matured. 

Had we not better bestow some attention on the pressing necessities now 
imposed upon the Government, and where the Government asks our aid, 
then to devote ourselves to the discussion of bills brought in from the Ju- 
diciary Corumittee or the Committee oii the District of Columbia or the 
Committee on Military Affairs, stiring up this vexed question which has 
been the' foundation of all our disturbances, and is, I say, the immediate 
cause of the present destructive war? I will say here that I do not be- 
lieve this subject requires legislation ; I do not believe we are wise enough 
to apply apt legislation to it. If it be among the accidents or conseqiien- 
ces of this war that slavery shall \\^ ciiashed out forever, let such result 
come ; we are not here to discuss the mode of doing it. For myself, !■ do 
not know how to contemplate such a result as the making free of the en- 
tire slave population uf the South, and thrusting them upon the Republic, 
without the gravest apprehension of evil. That man must be both a wise 
and a brave man who can look such a result calmly in the face and with 
truth say, " This have I done, or this have I promoted, and what I have 
done I have done -both wisely and justly." _ ',, . „, 

But, Mr. President, while differing with the chairman of the Judiciary 
Cbmmittee as to the bill, I agree with him in some expressions of opinil^n, 
and particularly his well-put concluding sentence: 

" But, while fighting this battle in behalf of constitutional liberty, it behooves us especially to 
see to it that the Constitution receives nodetrinient at our hands. We will have gained but lit- 
tle in suppressing the insurtoction, if it be at the expense of the Constitution ; for the chains 
which the bondman wears are none the lighter because they were forged by his own and not an- 
other's hands. As we expect to come out of this contest with our flag full and complete in all 
Its proportiijus, not a stripe erased or a star obscured, so let us presen'e the Constitution perfect 
in all its parts, with all its guarantees for tl>e protection of life and liberty unimpaired, and the 
instrument itself rendered d'oubly dear from the fact that it has been sacredly maintained and pp- 
yen equal to every emergency, under circumstances the most trying to which a nation was ever 
subjected. Then, when this struggle is over, we will have an assurance that our Government is 
stronger than ever before, and th'at constitutional liberty is established on a foundation which ao 
human power will ever be able to subvert." 

These I know to be the sentiments of the Senator from Illinois. They 
^re sentiments worthy of bin? ; but I thiftls; he h^s inade a vast raistak^, a 
radical mistake, in making, from his premises in the Constitution, so wide 
a departure as is exhibited in his bill. Before referring particularly to the 
constitutional question, which I shall discuss very briefly, I will see what 
the Governmep.t, both as political and constitutional que8tit)n, have been 
disposed to hold upon this matter. _ ,',(;' 

(At this point the bonorable Senator gave way for an executive session.) 

TcESDAV, March 4, 1862. 
' Mr. McDouGALL. At the close of my remarks yesterday, I thoi^^^t, 
that I had covered all the ground and all the considerations I desired to 



present on the question of the constitutionality of the right of confiscation; 
but upon recurring to my memoranda, I find that I had omitted to present 
some authorities, which I think important, to the consideration of the Sen- 
ate. I think I shall be pardoned by the Senate for occupying so much 
time, for it must be felt by every one of us that this is a question that 
should be fully discussed in all its aspects, I will now call the attention 
of the Senate to some remarks of Justice Story, in his Commentaries, 
which I omitted to read yesterday. In that portion of his Commentaries 
where h.e treats of the subject of treason, and the power reserved to the 
Federal Government to punish treason, he lays down language which, in 
my judgment, covers the whole constitutional question involved, in defi- 
nite terms, besides giviug some reasons of the strongest character why for- 
feiture or confiscation should not take place under any circumstances. He 
remarks : 

"It surely is enough for society to take the life of the offender, as a just punishment of his crime, 
without taking from his offspring and relatives that property, which may be the only means from 
saving them from poverty and rum. It is bad policy too ; for it cuts off all the attachments, which 
the unfortunate victims might otherwise feel for their own Government, and prepares them to en- 
gage in any other service, by which their supposed injuries may be redressed, or their hereditary 
hatred gratified. Upon these and similar grounds, it may be presumed, that the clause was first 
introduced into the original draft of the Constitution ; and, after some amendments, it was adopted 
without any apparent resistance." 

The clause indicated is, that there should only be forfeiture during the 
lifetime of the party convicted. 

"By the laws since passed by Congress, it is declared, that no conviction or judgment for any 
capital or other offences, shall work corruption of blood, or any forfeiture of estate." 

Observe the reasons given for this change of the rule of the Constitu- 
tion, made almost immediately after its adoption, made in 1790, shortly 
after the revolutionary war, and when peace had returned and counsel was 
prevailing throughout the country : 

"The history of other countries abundantly proves, that one of the strong incentives to prosecute 
offences as treason has been tlie chance of sharing in the plunder of the victims. Rapacity haB 
been thus stimilated to exert itself, in the service of the most corrupt tyranny ; and tyranny has 
been thus furnished with new opportunities of induljing its malignity and revenge; of gratifying 
its envy of the rich and good; and of increasing its means to reward favorites, and secure retain- 
ers for the wprst deeds." 

To avoid such motives, it is assumed by the commentator that the law 
of 1*790 was passed, which took from the courts the power to render the 
judgment of confiscation or forfeiture. And now observe the statement 
in the opening of the next section : 

"The power of punishing the crime of treason against the United States is exclusive in Con- 
gress ; and the trial of the offence belongs exclusively to the tribunals appointed by them.'' 

What tribunals? What tribunals but the courts of justice of the coun- 
try. I will also read on this same subject, and connected with this ques- 
tion of bills of attainder, a note introduced by Justice Story, quoting the 
authority of Doctor Paley : 

"Dr. Paley has strongly shown his disapprobation of laws of this sort. I quote from him a short 
but pregnant passage: "This fundamental rule of civil jurisprudence is violated in the case of acts 
of attainder or confl- cation, in bills of pains and penalties, and in all ea^ost/acto laws whatever'" — 

Here is the objection — 

"•in which Parliament exercises the double office of legislature and judge. And whoever either 
understands the value of the rule itself, or collects the history of those instances in which it has been 
invaded, will be induced, I believe, to acknowledge that it had been wiser iuid safer never to have 
departed from it. He will confess, at least, that nothing but the most manifest and immediate peril 
of the commonwealth will justify a repetition of these dangerous examples.' " 

And again, in a note on the subsequent page, where the commentator 
introduces his own remarks : 

'Dtiring the American Bevolution "— 



23 

And cases during that period might be quoted as authority here, per- 
chance — 

' ' this power was used with a most unsparing hand ; and it has been a matter of regret in succeeding 
times, however much it may have been appiauded^afirrante bello." 

There is no authority, except the authority of powor in its immediate 
and present action where power overrides law, that justifies proceedings of 
this kind. It is not to be found in the rules laid down by any of the calm, 
wise thinkers of the past or of the present day. 

Now, sir, I will recur to the subject upon which I was entering at the 
time of adjournment yesterday ; and that is, as to whether the provisions 
of this bill with regard to persons held to service or labor are either con- 
stitutional or politic. I object to the constitutionality of the second section 
of the bill, for the reason that it imposes upon the person claipiinaj and 
owning a fugitive from service the burden of estabhshiug affirmatively, be- 
fore such jurisdiction as may be assigned, that he is a loyal citizen. Now, 
to begin with, what does loyalty mean ? It has been said upon this floor 
recently that every man has his own definition. Loyalty is not a term 
known to the law ; and the question of loyalty will have to be determined 
by the caprice, proclivities, or inclination of whoever may be the judge in 
the case. The bill in this respect is not good legislation ; for when we 
undertake to limit a man's right, we should use such terms as would give 
a definite, fixed limit in exact and understood form of words. Loyalty, I 
suppose, means attachment ; and there are various degrees of it. It may 
be qualified in a thousand ways. There may be a certain degree of loy- 
alty and disloyalty united in the same individual's opinion. I say it is not 
a term known to the law ; it has no particular or definite signification ; 
and, therefore, it will be left at the control of whoever may be assigned to 
determine whether the proof of loyalty establishes loyalty in fact or not. 

Then I say that this is imposing a limitation upon the party who has 
an absolute right of reclamation under the Constitution. I suppose it is 
admitted that the Constitution of the United States now prevails all over 
the old Confederacy, over all the States. I understand the Senator from 
Illinois, the Chairman of the Judiciary Committee, to deprecate the idea 
of any violation of the Constitution. I understand the President of the 
United States and the Secretary of State to proclaim that the Constitution 
prevails everywhere, and that this war is to be waged simply to re-establish 
the Constitution and the laws of the Union everywhere. Now, I say, here 
is legislation which is a limitation upon the absolute right given to the 
owner by the terms of the Constitution, That it is such an absolute right 
is not now an open question. The nature and force of the constitutional 
provision can be clearly understood from its terms; and upon learned and 
full argument, it has been carefully determined by our courts. I believe 
the opinion of the Supreme Court of the United States in Prigg vs. The 
Commonwealth of Pennsylvania, has not been denied from the time that 
decision was pronounced until now by any court of the United States, 
either in the South or in the North. The article of the Constitution is in 
these words: 

" No person held to service or labor in one State, under the laws thereof, escaping into another 
Bhall, in consequence of any law or regulation therein, be discharged from such service or labor, but 
ghall be delivered up on claim of the party to whom such service or labor may be due." 

It has been held that it was sufficient for the claimant to show that he 
was the party to whom labor or service was due. Such is the exact sub- 
stance of the constitutional provision into which Congress, by law, cannot 



% 

'inyrpoTate aoy new terra. There Ts no room for argument upon this, sub- 
ject. In a note to this artide of the Constitution, in the first volume of the 
Stat-ilteS at LArge, the ddcisiou ib PH'gg: zJs. PenDsylvaBia is stated as fiillows : 

"Prigg rs. Tlie Commonwealth of Ponnsvlvani.n, 16 Peters, SSQ. The clause in the Constiitution 
relating to fugitives from labor manifestly contemplates the •ejfistferiee'^f n positive, unqualifled 
right on the part of the owner of the slave, which no Slate law or reglUation can in any way qualify, 
regulate, control, or restrain." . ' 

This case grew up under a law of' I'eiinsyTvahla'; bat it applies equaljy 
to congressional legislatiorl : ' ""' 

"Any law or relaticm which iuterriipts, limits, delays, or postpones tlu^ rights of the owner to the 
immediate command of his service or laljor, operates,' pro tanto, a discharsfe of the slave therefVom. 
The 'luostlon can never be how much he is discharged, from ; but whither j[ie is discharaodfrom any 
Service t)y the natural ahd necessary o|)eration of the State laws or State regulations. The question 
IS not one of quaniitrand degree, but of withholding or controlling the incidents ofa positive right." 

"A positive right." By the terms of the Constitution, which Cannot be 
qualified or limited by the legislation of Congress any more than by legis- 
lation on the part of the State of Pennsylvania, 

"The owner of a fugitifrfe slave has the same right to him in a State to which he lists esciapeil or 
fled that he had iu the State from which he escaped ; apU it is well known that this right to aeiaure 
or re-capture is Universally acknowledged in all the slaveholdiug States." 

. ^Whether this provision of the Federal Constitution be a wise or, an un- 
Wise one is not for us to determine. As loiig'as we pretend to act, as l0og 
iis we sit here sworn to act obedient to tlie; terms' 'of the Constitution, we 
should rfendferi^ a prompt and willing obedience, particularly at this time, 
whfen wfe clalin', with arms in our hands, with largti armies in the fieM, to 
utidertake the establishment of the Constitution throughout the, Union as 
against parties who claim, as against us, that W(^ lky|J,'been.^. guilty ^^^^^ 
violation. " '"■' . ''",''!^ ,,r!-"', ''"',.. i'! \. 

But, Mr. President, the'ris is a pledge on the part of this Government as 
it stands now, with its present chief, with its present organization, as far as 
the Government can pledge itself by overt act and word, that these rights 
.secured by the Constitution shall be maintained in all their integrity. The 
Ptesident, in his inaugural address, with the storiri of war threatening him, 
irapressed with all the responsibilities of a great nation disturbed, by iptes- 
'tiiie war — a war in which this very question was deeply involved — said: 

"I have no purpose, directly or ifidirectly, to interfere with the institution of Slavery in the 
States where it exists. I believe I have no lawful right to do so, and I have no inclination to 
do so.'' 

Here is a pledge of opinion as to his oi^pstitutional, lawful rigbt to.iutei" 
fere. either directly or indirectly. I believe this language meets this ques" 
tion. Not directly, but indirectly,. this bill makes war upon the institution 
within the States where it exists. ,The President proceeds to remark : 

" There is much controversy about the delivering up of fugitives from service or labor. The 
clause I now read is as plainly written in the Constitution as ajiy other of its provisions. 'No per- 
son held to service or labor in one State, under the laWs thereof, et-eaping into another, shall, in 
consequence of any law or regulation therein, be discharged from sudi service or labor, but shall 
he delivered up on claim of the party to whom such service or lalior may be due.' It is .-jcarcqly 
qnestionalilo that this provision was ihteticfed by those who inade it for the reclaiming of what We 
caU fu},'itive slaves; and tlie intention of t-fce lawgiver is the law. All members of Oongrfass 
swear their support to the whole Constitution, to this provision as nmcli as any other. "To the 
proposition, then, that slaves wljose cases come within the terms of tl/is clause shall bo deliv- 
ered up their oatlis are unanimous." 

^.f Itis true, the whole body of the Senate and House of Representatives 
•lia'Ve stVoru to the fki't;hf\jl eiteCution of this clause of the Constitution'.^ 
And further, Mr. President, on the 22d of April last, Mr. Seward discussed 
this subject in his correspondence with Mr. Dayton ; and here is the avowal 
of our policy to our representatives abroad through the State Department, 



25 

and I suppose it may without injustice be considered the avowal of our 
policy here : 

"The Territories will remain in all respects the same, whether the revolution shall succeed. or 
shall fail, The condition of slavery in the several States will remain just the same whether it succeed 
or fail. There is not even a protest fur the complaint that tlie disaffected States are to be con- 
quered by the United States if the revolution ftiil ; for the rights of the States and the condition 
of every human being in them will remain subject to exactly the same laws and forms of adminis- 
tration whether the revolution shall succeed or fail. In the one case the States would be federally 
connected with the new confederacy ; in the other, they would, as now, be members of the United 
States ; but their constitutions and laws, customs, habits, and institutionsin either case will remain 
the same. 

" It is hardly necessary to add to this incontestable statement the further fact that the new Presi- 
dent, as well as the citizens through whose sutTrages he has come into the administration has always 
repudiated all designs whatever, and whenever imputed to him and them of disturbing the system 
of slavei-y as it is existing under the Constitution and laws. The' case, however, would not be ful- ' 
ly i>re8ented if I were to omit to say that any such effort on his part would be unconstitutional ;. 
and all his actions in that direction would be prevented by the judicial authority, even though they 
were ^.ssented to by Congress and the people." 

To these declarations, made by the h<ynd of the Government and the 
persons next to him in ofiBce in the executive department of the Govern- 
ment, I v^ill add the expression of opinion by Congress on a resolution 
offered in the House of Representatives by the Senator from Ohio, nov? 
occupying the chair, [Mr. Sherman ;] a resolution passed as late as Feb- 
ruary 11, 1861, passed I beheve, with perfect unanimity, persons of both 
parties concurring in the declaration made by the resolution : 

" Hesii/red, That neither the Congress of the United States nor the people or governments of 
the non-slaveholding States have the coiistitutional right to legislate upon or interfere with flave- 
ry in any of the slaveholding States in the Union." 

Now, if we have no right to interfere with slavery under the Constitu- 
tion, have we any right above and beyond the Constitution ? We have 
heard much of the necessary law of war, and that this is a war mea- . 
sure. True, there are war necessities — necessities that arise in the midst 
of war between armed men arrayed against each other. These neces- 
sities, at the demand of the moment, must, more or less, control military ■ 
conduct; conditions of necessity controlling movements in the field 
justijfies no plea for. the violation of fundamental law by the body: 
charged with the establishing of law. We have no such imminent 
occasion imposing such necessity. There is neither necessity or poli- 
cy in this legislation,>even if we had the power to declare and make neces- 
sities by legislation instead of by the accidents of arms. As I have had 
occasion to say befoi:e in this discourse, instead of a proceeding of this 
kind strengthening the arms of the Union, it would paralyze the arms of 
thousands of men now raaint-aiuiug the cause of the Union in the field, and 
would make the men who oppose us, now doubtful of the justice of their 
cause, firm in conviction that it Ayas their duty to resist to the death. 

I understand Senators all admit their obligation to yield to the terms of 
the Constitution. Now, I do not want expositions on this subject. The 
Constitution executes itself. It has been repeatedly said by our courts, 
and well said, that it requires no legislation. It has been convenient tO; : 
legislate to furnish a quo modo for the presentation of the claim of right; 
but the Constitution gives the absolute right, a right not to be qualified as ■ 
to any one moment of time ; for the right of seizure is absolute, the court 
say in Prigg vs. Pennsylvania, as absolute in Pennsylvania as in Louisiana, 
the right being a perfect one. 

I have another objection, Mr. President, to this bill independent of its 
being, in my judgment, clearly obnoxious to constitutional objection. It 
strikes me that the scheme of colonization incorporated into this bill is a 
pej^fectly wild, a perfectly visionary one. It seems to me that it is an at-. »; 



26 

tempt on the part of Congress, by law, to usurp the ways of Providence^ } 
to produce a result not within the grasp of this collective people, nor, 
within the grasp of the power of this government. What does it contem- 
plate? The bill itself, although it does not avow it, aims at general eman- 
cipation to follow our arms. Four millions of people are said to be of the 
class who should be colonized. It is known now that the necessities of this 
war have imposed on us burdens quite as much as we can well bear. These 
burdens will increase — burdens which we shall not be able to meet, but 
which we must leave as a legacy to our children. Suppose we undertake i 
the enterprise of colonizing one million of these people, and undertake it as 
an immediate enterprise: what is to be the result ? First, where are they 
to be sent? Into some tropical country. What tropical country ? South 
America or some of the States of Central America. 

In the first place, then, we have to acquire for them, because they can- i| 
not acquire for themselves, a large territory to begin with. How is thatm 
territory to be acquired ? Except in few instances, where there are large 
claims held by grants from crowned heads, the property is divided and 
distributed up as it is in all other parts of what were formerly the dominvy; 
ions of Spain in America. We have to purchase titles, not merely from tb«/' 
Government itself, but from a multitude of individuals, and we shall. hav« 
the Government here surrounded by a thousand men with great grants on 
paper, asking large sums to sell out to us the State of Nicaragua, or some 
other State in that part of the world. What will that cost us before we 
get through ? But suppose we acquire the country to which we are to send 
these parties, the cost of transportion alone for one million of persons would 
not be less than $75,000,000, particularly when the Government under-' 
takes the enterprise. And after you have spent that sum, you have sent [^ 
out but one fourth of the population that is to be colonized, and you"' 
have accomplished this at an expense of $75,000,000 — double the legiti- ' 
mate annual revenue of the Gisvernment to-day. You have expended that 
by borrowing money from your own people or from abroad. Another 
year comes round, and how many persons are there of the same class ? 
Production alone, the natural increase, would make them four million fiv« 
hundred thousand, and you have that number to operate upon. If you 
gpend $76,000,000 for this purpose one year, can you do it the next ? But 
apart from that, you have not only to send these persons to a tropical 
country ; but they go there an ignorant, an indolent people, without any 
means, without clothing, without subsistence, except at the hands of this 
Government. Laws must be organized. The lands must be distributed, 
houses and implements of agriculture must be provided ; all this must b« 
Buperintended by the Government. We have to administer government 
for them. We have to furnish them with everything their condition and 
necessities may require. We constituted ourselves their guardians. How 
long, think you, we will have to stand guard and guardians for them ? 
Certainly either until they go out into absolute barbarism, or until we 
have destroyed all means of capacity on our part to lend them aid. Yoa 
propose to send . them to South America, if you please, to mingle with 
whom ? Not merely an ignorant, but a debased race of people, half Indian 
and half negro, men who live in the wilderness, who have no pursuits of 
labor, who live upon the spontaneous fruits of the earth — a lazy, vile, mis- 
erable race of demi-savages. In such a country, I say you have either to 
abandon them to absolute barbarism, or you have to maintain them a« a 
State by furnishing the money necessary for that purpose, and continuing 



27 

to furnisli it until the operation shall go beyond all possible forbe^ance, 
and then the consequences will remain the same. 

But apart from that, we have not the means to colonize these people ; 
■we have no policy of our Government that justifies it, and I questioa our 
constitutional power to do it. Where does the power come to us to estab- 
lish a government not for ourselves or for our people, but for a people whom 
we declare alien to us, and maintain that government distant from the 
boundaries of the Republic — where is the constitutional right? If the 
Constitution of the United States be a grant of power, that power is not 
granted ; and if there could be any departure from the spirit of the Con- 
stitution, this would be such a departure. 

But consider the idea of colonizing four millions of people, enough to 
make a powerful State, and administering their affairs when colonized, for 
any period of years, for the least supposable period. The cost of this en- 
tire war, should it continue all this year and next year, would not be an 
approximation to the burden thus imposed on the country. The country 
could not bear it. It is a wild, impracticable scheme, such as is not within 
the power of this Government or of any other Government upon earth. It 
does well enough to put upon paper. It looks charitable, perhaps, to some. , 
If you want to do the negro race great wrong, treat them worse than it is 
our custom to treat the savages on the frontier when we want possession 
of their lands, pass such a law ; and if you can carry out such a policy, 
perhaps you may hope that, like all rude and barbarous people placed by 
themselves, without,the restraint of masters or the restraint of true gov- 
ernment — like the Indians in the country which we possess — vice, disease, 
and crime will, in a few years, break down the multituiie to a small people 
that can be left to take care of themselves. This certainly cannot be done 
in the name of humanity. It is well understood, and well understood by 
every reasoning man, that there is no solution of this question consistent 
with the liberation of the whole slave population by any one act of war or 
of law. It is one of those evils that exist in the country, not within the 
remedy of any parchment signed by the President of the United States 
with our consent. A wise and considerate policy on the part of thit, Gov- 
ernment and this people, the policy inaugurated by the fatliers of the Re- 
public, by Washington and Jefferson and others, favoring a gradual eman- 
cipation, might and would have had vast results in reducing the evil, as 
far as it is an evil, among us. But the war made upon their movements, 
and the war made upon the institution, aroused all the angry feeling of the 
South many years since; and those measures of amelioration, which would 
have passed long ago in the State of Kentucky, in the State of Virginia, 
in the State of Maryland, and in the State of Tennessee-, confining the true 
slave line to the extreme South — those measures of amelioration have 
been preyented by agitation in the Senate and in the House of Represen- 
tatives, and in the newspaper press throughout the country. AH we cap 
hope for on the return of peace, is wiser and calmer counsels in regard to 
these things, and that gradually, by such appliances as may work out their 
results in the course of many years, we shall be freed from slavery as a 
burden. 

Do not understand me, Mr. President, as being in muv sense in the re- 
motest degree an advocate for slavery in any form. I have never, since I 
have had opinions, entertained the opinion that it could exist to the advan- 
tage of any free State. I regard its influences as being worse upon the 
white than upon the slave population. I understand, too, that when I 



28 

present my opposition to this measure, I come in contact with what is the 
popular opinion and feeling of the people throughout the free States. That 
cannot measure my conduct. I understand the business of a Senator here in 
the passage of laws to be to inquire into what laws are necessary and just, 
what laws piesented are impolitic or unjust, and to give his support to the 
one, and hisoppositiun to, the other. No notion of popular opinion should or 
will control me. 

I hold that one of tlie evils out of which the present condition of things 
in this country has grown is that the men who should be the leaders of 
opinion in the Republic, the men who in, various high places to which they 
have been elevated by the consideration of the country, have the power 
and stand charged with the duty of leading opinion, instead of leading 
have to too great an extent allowed themselves to be mere followers of the 
uninformed and ignorant opinion existing among their respective constitu- 
encies. With regard to this condition of slavery and the necessities con- 
nected with it, is popular opinion informed? I say it is not. Therefore I 
will not be guided by mere popular opinion, but will rather give the rea- 
sons for the opinions I entertain, trusting that I may think justly and may 
be able to communicate sound opinions to others. 

Mr. President, I say that the passage of this measure will make for us 
desperate adversaries, who will continue this war persistently until We have 
yielded ourselves to their position, or until they, as a people, shall be sacri- 
ficed. Legislation is an easy thing; the passage of laws, the making of 
written parchments with certain authentications, are easy things. It is 
said that '* the path downward into hell is an easy path," 

" But to return and view the cheerful skies, 
Therein the toil and miglity labor lies." 

When by this legislation we shall have aroused all that is fierce, all that 
is resistant in the South, and thus invited a more desperate war than we 
have yet witnessed ; after we have done the wrong, after we have com- 
mitted the deed, there will be no possibility of efficient retraction. Our 
claim of having pursued a just line of conduct in the maintenance of the 
Constitution will be ignored everywhere; our acts will be looked upon as 
violations of the law of nations, and violations of the laws of just war 
everywhere, and we cannot take these things back. It is easy, I say, to 
place ourselves in the position of having wronged these people in the eye 
of nations, in the eye of the civilized world, and in their eye. It will be 
a difiicult thing for us to redt-em ourselves from that position, 

Mr. President, it may be thought by some that the language of the 
Chief Magistrate and of the Secretary of State and of the Senator from 
Ohio was all well and proper in those days when the forces of the Gov- 
ernment had not been marshaled, when Washington itself was threat- 
ened by armed foes ; but that now that we have brought our six hun- 
dred thousand men in the field, that we have got anartillery alone suf- 
ficient and efficient for the entire war, that we have exhibited our ascend- 
ency on some well-fought fields, and now that we hove demonstrated our 
entire power over the South, this may justify us at this time, in the day of 
our triumph and in the day of their humiliation, to Impose upon them 
penalties, to apply to them tortures, to make them feel our giant strength. 
Sir, I have been taught that to the conqueror and the triumphant belong, 
as the highest virtue, magnanimity, as in days of peace the highest virtue 
is charity. We can now afford to be magnanimous. We have vindicated, 
in the eyes of the South as well as of the nations, our power to compel a 



29 

» 

proper subjection to the Constitution and the laws; and now, having de- 
monstrated this, and being in regular progress in the work, it is for us to 
show them, by clear and distinct and well-affirmed acts, that we come to 
them with the Constitution as it was — with their rights as they were — 
saying to them: "You misguided men, you men who have been led away 
from the standard of our fathers, we come to you saying, return ; yield 
obedience to these laws; live again in peace with us." Is not this the 
manner in which we should approach the people of the South, erring, 
wrong, rebellious as they are ? Christianity teaches us a rule about this ; 
but the same rule is taught by all the wise thinkers and the good and true 
men of antiquity and of the modern time. 

Let us go forward, then, oftering the Constitution as a common Consti- 
tution, the laws of the nation as common laws. Blows for armed rebels, 
but no chains for subjected citizens. With such a policy, Mr. President, 
we may hope to see the foundations of our Republic, now shaken and dis- 
turbed, settled upon a deeper and broader basis. I believe myself that 
this crisis has been demanded to establish our political institutions upon 
deeper and more enduring foundations, sufficient to sustain a structure to 
continue through the ages. 

Mr. President, I cannot permit myself to think that unwise counsels will 
be permitted to prevent a consummation so worthy of the prayers of all 
true patriots. There is too much of calm and considerate judgment here 
and elsewhere in the country, to unnecessarily hazard the results of the 
present war, and with it the great experiment of popular government. No 
matter how threatening may seem the measures proposed by Senatoi*, I 
shall trust in the well-advised and conservative judgment of the Senate. I 
shall maintain all my faith. I shall look hopefully forward to a speedy 
peace and a re-established and fraternal Union, a Union so strongly and 
deeply founded that we may all of us feel justified in apostrophizing this 
great, fair, and free land of ours : 

" And thou, my country, thou shalt never fall 
Save with thy childn-n. Thy maternal care, 
Thy lavish love, thy blessings showered on all, 
These are thy fetters. Seas and stormy air 
Are the wide barriers of thy boundaries, where, 
Amid thy gallant suns who guard thee well. 
Thou laugh'st at enemies, who shall then declare 
The date of thy deep-founded strength, or tell 
How happy in thy lap the sous of men shall dwell." 



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